Noren v. Heartland Payment Systems, Inc., ___ N.J. Super. ___ (App. Div. 2017). On February 6, 2017, the Appellate Division issued a published opinion in this case, which was discussed here. In that opinion, the panel dismissed defendant’s cross-appeal from the denial of its motion for summary judgment because defendant had not included in the appellate appendix all items submitted to the Law Division, in violation of Rule 2:6-1(a)(1).
Defendant moved for reconsideration of that aspect of the February 6 decision, arguing that the rule applies only when summary judgment has been granted, not where (as here) summary judgment was denied. Today, the Appellate Division issued a published opinion that denied reconsideration and rejected defendant’s interpretation of rule 2:6-1(a)(1). Judge Fisher wrote the panel’s opinion, which disposed of the issue in four pages.
Judge Fisher observed that defendant’s argument “ha[d] color because of the Rule’s particular wording.” The rule provides for a full listing of items submitted below when there is an appeal “from a summary judgment,” and an appeal “from a summary judgment” occurs only when summary judgment is granted. Judge Fisher found that argument without merit because it was too literal.
Citing Judge Learned Hand’s famous dictum that “[t]here is no surer way to misread any document than to read it literally,” Judge Fisher said that the rule “was obviously intended to precisely identify for the reviewing court that which was presented to the trial court ‘on the motion for summary judgment,’ regardless of how the motion was decided.” It is critical for appellate courts to know what was in the “original summary judgment record” whether the decision below was a grant or a denial of a summary judgment motion. If the rule “didn’t apply in all the ways in which a trial judge might dispose of a summary judgment motion, an appellate court could easily stray from its proper function by affirming or reversing in light of material never presented when the trial judge considered the motion.”
This was a creative argument by defendant’s counsel. But it was doomed to failure for the practical reasons that Judge Fisher gave. Whether the appeal should have been dismissed for defendant’s failure might be debatable. But the panel’s interpretation of Rule 2:6-1(a)(1) is the correct one.